CYIL vol. 8 (2017)

TOMÁŠ FECÁK CYIL 8 ȍ2017Ȏ of Article 64 DARIO which would establish international responsibility of the Union (to the exclusion of responsibility of Member States) for any breach of EU IIAs? The answer is no. Such construction by far exceeds the scope of the proposed special rule of attribution which has been suggested by the EU and some authors pleading for wide international responsibility of the Union. According to such a special rule, the Union (and only the Union) should be responsible for the conduct of Member States when they implement binding acts of the Union, when the Union exercises normative control over their conduct. The existence of such a special rule of attribution is debatable. In the commentaries to Article 64 DARIO, the ILC has neither confirmed nor denied its existence, as it only contrasted the practice of WTO panels, which was in principle affirmative, with the case law of the ECtHR, pointing the opposite direction, without making any own conclusions. 35 However, in the context of the preparatory works on DARIO, at no point was there any special rule discussed which would render the Union (and only the Union) internationally responsible for any conduct of Member States where the latter exercised their own internal competence and adopted measures which were not intended to implement the EU law rules (in other words, where Member States acted outside the normative control of the Union). The idea that the Union shall be solely responsible for such conduct of Member States solely for the reason that it has the external competence for the given area is a novelty which at the time when the regulation was adopted could have in no event reflected any existing special rule on international responsibility of the Union. The fact that such special rule does not exist does not mean it could not be purposefully created pro futuro. It should be emphasized that the theoretical EU-law-based justification of the chosen special rule on responsibility may certainly have significance for internal debates at the EU level, but is not that important from the international law perspective. Much more important in the sphere of the EU’s external relations is the clear articulation of the special rule in the legal text, which would leave no room for arbitral tribunals as regards its scope, content and applicability. As far as legislative technique is concerned, it would seem more appropriate to discuss the theoretical justification of the special rule from the EU law perspective in the explanatory memorandum, while the regulation itself would clearly and unequivocally articulate the rule itself, without the need to refer to its underlying rationale. However the regulation fails in this respect, as it does not clearly articulate the special rule on exclusive responsibility of the Union for the breaches of investment agreements attributable to Member States as a real normative rule in the form of an article. The regulation itself does not deal with the international responsibility of the Union at all, and it only implicitly takes the assumption of the exclusive international responsibility of the Union as the basis for providing more detailed rules on financial responsibility and procedural issues. The question of international responsibility is only superficially touched upon in the Preamble, suggesting that there is already an existing special rule on international responsibility, and its existence is only acknowledged. 36 35 ILC commentaries, supra n. 18, at 100-102. 36 Recitals 1 and 3 of the regulation’s preamble read as follows: (1) With the entry into force of the Treaty of Lisbon foreign direct investment is included in the list of matters falling under the common commercial policy. In accordance with point (e) of Article 3(1) of the Treaty on the Functioning of the European Union (TFEU), the Union has exclusive competence with respect to the common commercial policy and may be a party to international agreements covering provisions on foreign direct investment. (3) International responsibility for treatment subject to dispute settlement follows the division of competences

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